Winter 2003

On Dec. 1, 2002, Nancy Hogshead-Makar, who was a participant in the 1984 Olympics, appeared on the television news show "60 Minutes" to discuss Title IX 30 years after its enactment. In this article, Ms. Hogshead-Makar gives her perspective on the show's treatment of the issues it addressed.

60 Minutes' December 1, 2002, segment on Title IX not only misled viewers by incorrectly stating the law in this area, but also failed to include important information that refutes claims by some coaches and athletes interviewed for the segment that Title IX is a "quota" law that hurts men's collegiate sports. While some schools are hostile to Title IX and make choices inconsistent with the school's educational mission, women should not be afforded fewer athletic opportunities, nor should effective civil rights laws be weakened. By not providing all the facts, the 60 Minutes segment did a disservice to its viewers, to parents, and to women athletes around the country. Below are facts about Title IX that were inaccurately presented in the 60 Minutes segment.

1) "Proportionality" is not the only "surefire way to abide" by Title IX.

In 1979, the Department of Health, Education, and Welfare, the predecessor federal agency to the Department of Education (DOE), issued a policy interpretation of Title IX that created a three-prong test for schools to demonstrate compliance.

Prong One allows a school to roughly match the percentages of male and female athletes with the percentages of male and female students enrolled in the school. Prong Two permits a school to demonstrate a history of expanding opportunities for women. And, Prong Three allows a school to demonstrate that it is meeting the interests and abilities of the female students on campus.

Contrary to the suggestion by 60 Minutes that proportionality is "the only surefire way to abide" by the law, most schools do not rely upon Prong One to demonstrate compliance with Title IX. According to the Office of Civil Rights (OCR), only 21 of the 74 schools (1/3) reviewed by their office between 1994 and 1998 for compliance used the proportionality test.

2) Title IX is not a "gender quota law".

Every federal appeals court that has examined this issue has upheld the DOE regulations and concluded that Title IX does not constitute reverse discrimination and is not a quota law. In 1997, the U. S. Supreme Court let stand a lower appellate court decision in Cohen v. Brown University that held that Title IX is constitutional and that Brown University was in violation of Title IX by not offering adequate sports opportunities for women.

3) Women are not receiving "the lioness' share" in intercollegiate athletic programs.

Thirty years after enactment of Title IX, men's athletic programs still receive the overwhelming share of participation opportunities, operating budgets, recruiting dollars, and scholarships. A report by the General Accounting Office (GAO) indicates that men's opportunities have increased both in number of teams offered and number of individual opportunities to participate. The Report also indicates that most schools (72%) that added women's teams did so without discontinuing either men's or women's teams.

4) Men's athletic programs are not the only programs that have been cut or discontinued. Women's programs continue to be cut and underfunded.

Women have been subject to decades of unmet and underfunded sports opportunities. For example, while men's gymnastics has lost 56 intercollegiate teams in the past decade, female gymnasts lost 100 teams in that same period. Women in many instances have had to sue schools for the basic opportunity to participate in sports. Title IX has been the only means of protecting against unfair practices in women's athletics.

5) Title IX does allow for differences in male and female interests in athletics.

Title IX does not interfere with differences between men and women in sports interests and abilities. For example, schools do not have to establish football teams for women simply because they have men's football teams. In schools where female students do not seek sports opportunities, schools do not have to offer such opportunities (e.g., certain conservative Muslim schools where the women's religion prohibit their participation in sports).

6) Title IX does not apply only to athletics.

Title IX applies to all areas of education but athletics, by its very nature, presents a unique situation for schools. While admission to physics, math, or English programs is typically a gender-blind process, athletic departments generally are sex segregated. The impermissible "separate but equal" doctrine struck down in Brown v. Board of Education is permissible under Title IX because sports are gender specific. Because of this sex-segregation, colleges decide well in advance of a given athlete's high school sophomore year how many teams they will be sponsoring when that high school athlete eventually becomes a college freshman. Schools create the demand and recruits athletes to fill the demand created. As a result, "determining whether discrimination exists in athletic programs requires gender-conscious, group-wide comparisons." Title IX simply requires that schools allocate these school-created slots in a nondiscriminatory manner.

7) Women are interested in playing sports.

Over the last 30 years, an average of 2.8 million high school girls have participated in sports each year - an 800% increase from pre-Title IX participation rates. Prior to Title IX's enactment, fewer than 30,000 women participated in college sports each year; today, that number exceeds 150,000.

The Committee on the Rights of Women long has worked to encourage the use of Title IX to promote equal educational opportunity without regard to sex. In August 2002, during the ABA Annual Meeting in Washington, D. C., the Committee sponsored a CLE program entitled, "Title IX: Why You Should Expand Your Litigation Practice Into This Under-served Area of Law." In 2003, the Committee plans to continue its efforts to educate the profession on Title IX issues.